[RICH] [[TEAL]]LAW UNITED | SUPREME COURT REPORTABLE JUDGMENTS[[/TEAL]]
SUPREME COURT • CONSTITUTIONAL LAW • CAPITAL PUNISHMENT
A two-judge Bench held that no compelling scientific, medical or empirical material displaced the binding three-judge ruling in Deena v. Union of India ; it nevertheless left future constitutional scrutiny open if stronger evidence emerges.
[RICH] **NEW DELHI |** **Aug 18, 2026** **| LEGAL NEWS ANALYSIS**
[RICH] **Lead.** The Supreme Court of [[TEAL]]India[[/TEAL]] dismissed a public-interest challenge to hanging as the sole statutory mode of executing a death sentence. The Court ruled that a Bench of two judges could not depart from Deena v. Union of [[TEAL]]India[[/TEAL]], a larger-Bench precedent later approved in Shashi Nayar, and that the material placed before it did not justify a reference for reconsideration. The judgment does not direct the Union Government to create an expert committee or change the law: it merely preserves the Government’s policy freedom to conduct a future multidisciplinary review. (Judgment, paras 48–66; PDF pp. 33–47.)
Case at a Glance
[TABLE_START] facts
[TABLE_ROW] ["Case", "Rishi Malhotra & Anr. v. Union of India"]
[TABLE_ROW] ["Neutral citation", "2026 INSC 873"]
[TABLE_ROW] ["Proceeding", "Writ Petition (Criminal) No. 145 of 2017; Diary No. 29088/2017"]
[TABLE_ROW] ["Decision", "Aug 18, 2026 • New Delhi"]
[TABLE_ROW] ["Bench", "Justice Vikram Nath and Justice Sandeep Mehta"]
[TABLE_ROW] ["Author", "Justice Sandeep Mehta"]
[TABLE_ROW] ["Statutory challenge", "Section 354(5), Code of Criminal Procedure, 1973; corresponding Section 393(5), Bharatiya Nagarik Suraksha Sanhita, 2023"]
[TABLE_ROW] ["Core issue", "Whether hanging as the sole civilian mode of execution violates Articles 14 and 21, and whether Deena required reconsideration by a larger Bench"]
[TABLE_ROW] ["Disposition", "Writ petition dismissed; pending applications disposed; no mandatory directions issued"]
[TABLE_ROW] ["Separate opinions", "None"]
[TABLE_END]
What the Supreme Court Held
- Deena v. Union of [[TEAL]]India[[/TEAL]], decided by three judges and later approved by a Constitution Bench in Shashi Nayar, remained binding. A two-judge Bench could depart only if significant constitutional, legislative, scientific or empirical change undermined its foundation. (Paras 48–52; PDF pp. 33–35.)
- The petitioner and Project 39A did not place material capable of showing that Deena had lost efficacy. Lethal injection was not demonstrated to be a superior or more humane alternative; the impleader’s own material documented its risks. (Paras 53–60 and 62; PDF pp. 35–46.)
- The military-law option of execution by shooting did not establish unconstitutional discrimination because the armed-forces statutes operate in a distinct field and govern a separate class. (Paras 55–56; PDF p. 36.)
- The Law Commission’s 187th Report was recommendatory. Parliament retained hanging in Section 393(5) of the BNSS despite the report. (Para 61; PDF pp. 44–45.)
- The petition was dismissed, but future scrutiny remains possible if compelling scientific, medical or empirical evidence materially displaces Deena’s foundation. Any expert-body review by the Union is optional policy work, not a judicial command. (Paras 63–66; PDF pp. 45–47.)
[CALLOUT] KEY JUDICIAL OBSERVATION “The dismissal of the present writ petition must not be understood as foreclosing future constitutional scrutiny” if compelling evidence materially displaces Deena’s factual and scientific basis. — Paragraph 64, PDF p. 46
Background
The petition, filed under Article 32 as a public-interest litigation, challenged Section 354(5) of the CrPC—carried forward as Section 393(5) of the BNSS—which prescribes that a person sentenced to death shall be hanged by the neck until dead. The petition sought a declaration that the provision violated Article 21 and a declaration of a fundamental right to a dignified procedure of death. (Paras 2–3; PDF pp. 1–2.)
The judgment traced the statutory history from the Code of Criminal Procedure, 1861 through the Codes of 1882 and 1898, the CrPC of 1973 and the BNSS of 2023. It also discussed the mechanics and risks associated with long-drop hanging, the Royal Commission on Capital Punishment, the Law Commission’s 35th and 187th Reports, and Deena, which upheld hanging in 1983. (Paras 4–19; PDF pp. 2–11.)
The Court distinguished the settled constitutionality of capital punishment from scrutiny of the method used to execute it. Jagmohan Singh and Bachan Singh establish that the death penalty is not per se unconstitutional and is confined to the “rarest of rare” cases; the present case concerned only the execution method. (Paras 6–7; PDF pp. 4–5.)
[RICH] On **Oct 6, 2017**, while issuing notice, the Court observed that constitutional perspectives evolve and invited legislative consideration of less painful alternatives. On **May 2, 2023**, the Attorney General reported that the Government was considering an expert committee. The final judgment records that no later update established that such a committee had actually been constituted. (Paras 22–24; PDF pp. 12–14.)
Issues Before the Court
- Whether prescribing hanging as the sole civilian method of execution under Section 354(5) CrPC and Section 393(5) BNSS violates Articles 14 and 21 of the Constitution.
- Whether later constitutional doctrine, scientific understanding or empirical evidence justified doubting Deena and referring its correctness to a larger Bench.
- Whether the statute could be struck down or read down to permit lethal injection, shooting or another allegedly less painful method.
- Whether the alternative of shooting under the Army, Air Force and Navy Acts rendered the civilian statutory scheme discriminatory.
Parties’ Arguments
1. Petitioner — Rishi Malhotra, appearing in person
The petitioner submitted that hanging is barbaric, cruel, physically painful and psychologically degrading, violating Articles 14 and 21. He relied on the Law Commission’s 187th Report, State jail-manual procedures, ECOSOC Safeguard No. 9 and the risk that an incorrectly calculated drop may cause slow strangulation or decapitation. (Paras 26–29; PDF pp. 14–18.)
He argued that the armed-forces statutes permit hanging or shooting and therefore demonstrate the availability of an alternative, while ordinary criminal law denies civilians any choice. He sought reconsideration of Deena or, alternatively, a reading-down of the statute to permit lethal injection, shooting or another more humane method. These propositions were submissions, not findings of fact. (Paras 30–32; PDF pp. 18–19.)
2. Impleader — Project 39A, National Law University Delhi
Senior Advocate Meenakshi Arora argued that Deena was decided on a limited evidentiary basis and that later medical material showed hanging may not cause instantaneous, painless death. She relied on post-exhumation research, historical accounts and Shabnam’s statement that execution should bring about immediate unconsciousness and quick death without mutilation. (Paras 33–35; PDF pp. 19–23.)
Project 39A also cautioned that lethal injection carries serious risks: drug-protocol failures, venous-access problems, concealed pain and documented botched executions. Its position was therefore not that lethal injection should automatically replace hanging, but that any alternative must itself undergo rigorous constitutional scrutiny. (Paras 36–37; PDF pp. 23–25.)
3. Respondent — Union of India
Attorney General R. Venkataramani argued that the petition invited the Court to redesign a legislative policy, contrary to separation of powers; that Deena had already upheld the provision; and that Parliament consciously retained hanging in the BNSS. He said Article 21 does not confer a choice of execution method and that no reliable comparative basis established a constitutionally superior alternative. (Paras 38–44; PDF pp. 25–31.)
[RICH] The Union further submitted that military law addresses a distinct class, Law Commission reports are recommendatory, [[TEAL]]United States[[/TEAL]] experience does not prove lethal injection more humane, and no credible material showed a botched execution in [[TEAL]]India[[/TEAL]] under the existing framework. It asked the Court to dismiss the petition or, if reconsideration were thought necessary, refer the matter to a larger Bench rather than rewrite the law. (Paras 45–47; PDF pp. 31–33.)
Court’s Analysis and Reasoning
1. Binding precedent sharply limited the two-judge Bench
Deena had already decided the precise constitutional question and, in the Court’s view, had exhaustively considered comparative methods, expert opinion and the scientific material then available. Its position was subsequently approved by the Constitution Bench in Shashi Nayar. Stare decisis therefore prevented a smaller Bench from departing unless later developments convincingly undermined the precedent. (Paras 48–52; PDF pp. 33–35.)
2. The evidentiary threshold for reopening Deena was not met
The Court found no “unimpeachable scientific or empirical evidence” establishing that hanging no longer met constitutional standards. It also treated the impleader’s evidence about failures of lethal injection as demonstrating the complexity of choosing an alternative, rather than proving a superior method. (Paras 53–54; PDF pp. 35–36.)
After reproducing Deena’s comparative discussion of electrocution, lethal gas, shooting and lethal injection, the Court held that neither the petitioner nor the impleader had produced material capable of casting doubt on Deena’s conclusion. No compelling reason therefore existed for a larger-Bench reference. (Paras 57–60; PDF pp. 36–44.)
3. Military statutes were not a valid civilian comparator
The availability of shooting under the Army Act, Air Force Act and Navy Act did not invalidate the civilian rule. Those enactments operate in a distinct field and govern persons subject to military law; the comparison therefore did not establish hostile discrimination under Article 14. (Paras 55–56; PDF p. 36.)
4. The Law Commission recommendation did not amend the statute
The Court characterised the 187th Report as recommendatory and inferred that legislators and policy-makers had considered the subject when retaining hanging in the BNSS. The report could inform debate, but it did not itself invalidate Sections 354(5) or 393(5). (Para 61; PDF pp. 44–45.)
5. Lethal injection was not shown to have a constitutional advantage
[RICH] The Court relied on material concerning botched lethal-injection executions in the [[TEAL]]United States[[/TEAL]] and accepted the Union’s argument that no comparable Indian instance had been demonstrated. It concluded that the record did not show any added advantage sufficient to make lethal injection a legally superior alternative. (Para 62; PDF p. 45.)
6. The Court preserved an evidence-based constitutional aperture
The refusal to reopen Deena was record-specific, not an absolute bar for all time. Paragraph 64 permits a future challenge supported by compelling scientific, medical or empirical evidence materially displacing Deena’s foundation. Paragraph 65 says the Union may, if it considers appropriate, undertake a multidisciplinary review; this is an invitation left to policy choice, not a writ, deadline or enforceable direction. (Paras 64–65; PDF pp. 46–47.)
Ratio Decidendi and Obiter
Ratio decidendi
- A two-judge Bench is bound by Deena, especially after its approval in Shashi Nayar, unless significant constitutional, legislative, scientific or empirical developments convincingly displace the earlier decision’s foundation.
- On the record placed before the Court, no such material existed; lethal injection was not demonstrated to be superior, and the military-law comparison did not establish unconstitutional discrimination. Therefore neither invalidation nor a larger-Bench reference was justified. (Paras 48–63.)
Important obiter observations
- Future constitutional scrutiny remains open if compelling new scientific, medical or empirical evidence emerges. (Para 64.)
- The Union may consider a multidisciplinary expert review involving law, forensic medicine, neuroscience, penology and allied disciplines. This is expressly permissive policy commentary, not a mandatory direction. (Para 65.)
Final Ruling and Directions
- The Court declined to refer Deena to a larger Bench. (Para 63.)
- Writ Petition (Criminal) No. 145 of 2017 was dismissed with the observations recorded in paragraphs 64 and 65. (Para 66.)
- All pending applications were disposed of. (Para 67.)
- No provision was struck down or read down; Sections 354(5) CrPC and 393(5) BNSS remain operative.
- No expert committee was ordered, no legislative amendment was directed, and no compliance deadline was fixed.
Statutes and Constitutional Provisions Involved
- Constitution of [[TEAL]]India[[/TEAL]]: Articles 14, 21 and 32; Article 72(1)(c) appears in the discussion quoted from Deena.
- Code of Criminal Procedure, 1973: Section 354(5), prescribing execution by hanging.
- Bharatiya Nagarik Suraksha Sanhita, 2023: Section 393(5), retaining the corresponding prescription.
- Army Act, 1950; Air Force Act, 1950; Navy Act, 1957: relied on by the petitioner for the alternative of shooting under military law.
- Indian Penal Code, 1860 and the earlier Codes of Criminal Procedure of 1861, 1882 and 1898: discussed as historical background.
Key Precedents and Their Treatment
[TABLE_START] data
[TABLE_HEAD] ["Authority", "Treatment", "Role in this judgment"]
[TABLE_ROW] ["Deena v. Union of India , (1983) 4 SCC 645", "Followed; controlling", "Upheld hanging under Section 354(5); Court found no evidentiary basis to doubt or refer it."]
[TABLE_ROW] ["Shashi Nayar v. Union of India , (1992) 1 SCC 96", "Applied", "Constitution Bench approval of Deena further restricted the two-judge Bench."]
[TABLE_ROW] ["Jagmohan Singh v. State of U.P., (1973) 1 SCC 20", "Reaffirmed as background", "Death penalty is not per se unconstitutional when imposed through lawful procedure."]
[TABLE_ROW] ["Bachan Singh v. State of Punjab , (1980) 2 SCC 684", "Reaffirmed/distinguished issue", "Established “rarest of rare”; present case concerned execution method, not validity of capital punishment."]
[TABLE_ROW] ["Gian Kaur v. State of Punjab , (1996) 2 SCC 648", "Considered", "Dignity extends to the end of natural life; relied on in framing the Article 21 challenge."]
[TABLE_ROW] ["Shabnam v. Union of India , (2015) 6 SCC 702", "Cited by impleader", "Invoked for immediate unconsciousness, quick death and avoidance of mutilation."]
[TABLE_ROW] ["Baze v. Rees, 553 U.S. 35 (2008)", "Comparative authority", "Cited by Project 39A to show lethal injection does not guarantee a painless death."]
[TABLE_ROW] ["A.K. Roy; Supreme Court Employees’ Welfare Assn.; Suresh Seth; Deoki Nandan Aggarwal; Asif Hameed; Aravali Golf Club", "Union’s submissions", "Invoked on separation of powers and judicial restraint; dismissal rested primarily on precedent and insufficient evidence."]
[TABLE_END]
Legal Significance
The judgment preserves the current statutory method of execution without declaring that hanging is immune from future challenge. Its immediate doctrinal significance lies in precedent discipline: a smaller Bench will not reopen a larger-Bench constitutional holding on generalized claims or contested comparative material. A future challenge would need compelling evidence tied to the factual and scientific assumptions underlying Deena.
The decision also draws a careful institutional line. It rejects judicial substitution of a preferred execution technology on this record, yet recognises that constitutional interpretation may respond to scientific change. The expert-body passage should therefore be reported as policy space left open to the Union—not as an order constituting a committee.
Practical Impact — Editorial Analysis
[RICH] For death-penalty litigation, hanging remains the sole statutory civilian method under Section 393(5) BNSS. Lawyers challenging it will likely need contemporary, [[TEAL]]India[[/TEAL]]-specific medical and empirical evidence rather than broad descriptions of foreign failures or general assertions of pain.
For policy-makers, the judgment leaves room for an evidence-led review without compelling one. Any future committee would need to compare not only speed and pain, but also reliability, medical ethics, logistics, risk of botched execution, dignity and the constitutional requirement to avoid unnecessary suffering.
For legal reporting, the critical distinction is between holding and observation: the Court dismissed the challenge and refused a larger-Bench reference; it did not direct Parliament to amend the law, did not require the Union to form a committee, and did not hold that future scrutiny is barred.
Source and Verification Note
[RICH] This article is controlled by the complete 47-page signed Supreme Court judgment. The first page expressly states “REPORTABLE”; the judgment contains 67 numbered paragraphs, no annexure, no separate concurrence or dissent, and is signed by Justice Vikram Nath and Justice Sandeep Mehta at [[TEAL]]New Delhi[[/TEAL]] on **Aug 18, 2026**. The Court’s disposition, the ratio/obiter distinction and the non-mandatory character of paragraph 65 were verified against the operative portion at PDF pp. 45–47.
Secondary reporting was used only to cross-check procedural history and the parties’ positions before judgment; it does not override the signed decision.
Sources
- Official signed judgment PDF in Google Drive
- Supreme Court of India — Latest Judgments
- Law Commission of India — Seventeenth Commission reports (Report No. 187)
- Bar & Bench — **Jan 22, 2026** hearing report
- LiveLaw — **Oct 15, 2025** hearing report and case background
- Indian Express — **Oct 6, 2017** notice-stage report
Prepared as a publication-ready legal-news summary. Editorial analysis is expressly labelled.
Legal-news analysis • Source-controlled to the signed judgment
View official judgment PDF ↗